The events of Kristallnacht (November 1938)

51. The importance of the events on 9 and 10 November 1938 in the history of the Third Reich and hence the importance of the manner in which the applicant dealt with them was not disputed by Mr Davies. As the judge put it:

"13.14 It was, I believe, common ground between the parties that Kristallnacht marked a vital stage in the evolution of the Nazis' attitude towards and treatment of the Jews. It was the first occasion on which there was mass destruction of Jewish property and wholesale violence directed at Jews across the whole of Germany. As an historian of the Nazi regime, it was therefore important for Irving to analyse with care the evidence how that violence came about and what role was played by Hitler."

52. In Goebbels, (p 276-277), the applicant described the events in these terms:

"What of Himmler and Hitler? Both were totally unaware of what Goebbels had done until the synagogue next to Munich's Four Season Hotel was set on fire around one A.M. Heydrich, Himmler's national chief of police, was relaxing down in the hotel bar; he hurried up to Himmler's room, then telexed instructions to all police authorities to restore law and order, protect Jews and Jewish property, and halt any ongoing incidents. The hotel management telephoned Hitler's apartment at Prinz-Regenten Platz, and thus he too learned that something was going on. He sent for the local police chief, Friedrich von Eberstein. Eberstein found him livid with rage.

According to Julius Schaub, the most intimate of his aides, Hitler 'made a terrible scene with Goebbels' and left no doubt about the damage done abroad to Germany's name. He sent Schaub and his colleagues out into the streets to stop the looting (thus Schaub's postwar version). Philipp Bouhler, head of the Fuhrer's private chancellery, told one of Goebbels' senior officials that Hitler utterly condemned the progrom and intended to dismiss Goebbels. Fritz Wiedemann, another of Hitler's adjutants, saw Goebbels spending much of the night of November 9-10 'telephoning ... to halt the most violent excesses.' At 2.56 A.M. Rudolf Hess's staff also began cabling, telephoning, and radioing instructions to gauleiters and police authorities around the nation to halt the madness. But twenty thousand Jews were already being loaded onto trucks and transported to the concentration camps at Dachau, Buchenwald, and Oranienburg. Hitler made no attempt to halt this inhumanity. He stood by, and thus deserved the odium that now fell on all Germany.

Goebbels had anticipated neither Hitler's fury nor, probably such an uncontrollable, chaotic orgy of destruction. Not surprisingly he made no reference to this unwelcome turn of events in his diary. But perhaps this, rather than Lida Baarova, was the reason why he would write this mea culpa to Hitler six years later: `In the twenty years that I have been with you, particularly in 1938 and 1939, I have occasioned you much private grief.' Ribbentrop relates that when he tackled Hitler about the damage Goebbels had done, Hitler rejoined that this was true, but he could not let the propaganda minister go -- not when he was just about to need him again."

53. It is not disputed that the judge was entitled to have regard to the contents of Goebbels when considering whether the defence of justification was established notwithstanding the fact that its publication (1996) post-dated that of Professor Lipstadt (1994). In Cohen v Daily Telegraph Ltd [1968] 1 WLR 916, Lord Denning, at p 919, cited Maisel v Financial Times Ltd [1915] 3 KB 336 and Godman v Times Publishing Co Ltd [1926] 2 KB 273 and stated:

"Those cases show that, in order to prove that the words are true, particulars can be given of subsequent facts which go to support the charge. Thus, if a libel accuses a man of being a `scoundrel,' the particulars of justification can include facts which show him to be a scoundrel, whether they occurred before or after the publication."

54. Mr Davies makes the point, when dealing with this and other events, that the relevant passage in the applicant's publication is a very small part of the whole. In this case, it is less than a page in a book of over 500 pages plus over 150 pages of "notes to sources". Notwithstanding the brevity of the passage, the judge was entitled to hold that the light it throws upon the approach of the applicant to important historical events is important.

55. In our judgment, the judge's summary of the effect of that passage in Goebbels is apt:

"13.15 Readers of the account in Goebbels of the events of 9 and 10 November 1938 were given by Irving to understand that Hitler bore no responsibility for the starting of the pogrom and that, once he learned of it, he reacted angrily and thereafter intervened to call a halt to the violence."

56. The judge considered the evidence on which the applicant relied and stated that in his view (13.17) the applicant ought to have approached the accounts he was given by Hitler's adjutants many years after the event "with considerable scepticism and rejected them where they conflict with the evidence of the contemporaneous documents both before and after 1 am on 10 November". Having made other findings adverse to the applicant, the judge concluded (13.18) that:

"The claim that during that night Hitler did everything he could to prevent violence against the Jews and their property is in my judgment based upon misrepresentation, misconstruction and omission of the documentary evidence."

57. Mr Davies submits that it is not perverse to prefer oral to documentary evidence. An historian is entitled to a very broad measure of judgment. The point at which Mr Davies attacks the judge's analysis of Kristallnacht is in an alleged failure by the judge to appreciate in his conclusions the significance of a telegram emanating from Gestapo Headquarters at 3.45am (the Bartz telegram). It is referred to at footnote 49, one of eight footnotes to the relevant account in Goebbels, though not in the text. However, it emerged, that the applicant himself had not mentioned it in the course of his evidence, when it could have been the subject of analysis and cross-examination, but only in his closing submissions. Even had it been subject to debate in the course of the trial, and having regard to its timing, it is difficult to see what doubt it could have cast upon the judge's conclusions on this issue.

58. The judge analysed the evidence carefully. His reference to documentary as against oral evidence was not a generalisation but a view upon the particular facts of the case. The documents were contemporaneous; the oral account of Hitler's adjutants were given "many years after the event". The judge concluded (13.16) that "an objective historian would in my view dismiss the notion that Hitler was kept in ignorance until a relatively late stage." He added (13.17) that "to write, as Irving did, that Hitler was 'totally unaware of what Goebbels had done' is in my view to pervert the evidence."

59. Mr Davies, on this and other factual issues, has been unable to cast significant doubt upon the judge's conclusions on the evidence. The judge accepted, and was entitled to accept, Professor Evans' construction of the telex sent by Hess at 2.56am. He said that the order read (5.60):

"On express orders from the very highest level, acts of arson against Jewish shops and the like are under no circumstances and under no conditions whatsoever to take place."

That, the judge concluded (13.18), "was not a general instruction to 'halt the madness' [as described in Goebbles p 277] but rather to stop acts of arson against Jewish shops and the like, so permitting other acts of destruction to continue and Jewish homes and synagogues to be set on fire."